place of imprisonment, and the officer to whom the same is directed shall not be bound to obey it, unless that sum be paid or tendered to him. But this section shall not be construed to require the payment in all cases of the full statute fees, but the court in its discretion may require the payment of any sum less than the statute fees, and the residue shall be paid as in cases of the service of criminal process.

§ 1656. Any person to whom a writ of habeas corpus shall be directed shall, upon payment or tender of reasonable charges and expenses for its execution, make return thereof with as much promptness as the nature of the case will permit.

§ 1657. The party making the return shall state therein, in writing, plainly and unequivocally:

First. Whether he has or has not that party in his custody or power, or in any manner under his restraint or control.

Second. If he has the party in his custody or power, or under his restraint or control, he shall set forth at large the authority, and the time and whole cause of such imprisonment or restraint, with a copy of any process or warrant under which the party is detained.

Third. If he has had the party in his custody or power, or under his restraint or control, and has transferred such custody, restraint, or control to another, or if he has any knowledge or suspicion that any other person exercises or claims to exercise such custody, power, restraint, or control, he shall state all that he knows or suspects.

And no return shall be adjudged sufficient when the respondent has once held the party in his custody or power, or under his restraint or control, unless it states fully all that the respondent knows or suspects, or alleges unequivocally that he neither knows nor suspects nor has any cause to suspect anything as to the custody or restraint of the party alleged to be detained, up to the time of making such return.

§ 1658. The return shall be signed by the person making it, and sworn to by him, unless he is a sworn public officer making the return in his official capacity. Such return shall be evidence in the case, but not conclusive.

§ 1659. The person making the return shall bring the body of the party, if in his custody or power or under his restraint or control, according to the command in the writ, unless prevented by the sickness or infirmity of the party. But this shall not prevent the party making the return, if a private person, from demanding in advance actual necessary expenses of travel and transportation.

§ 1660. When from sickness or infirmity of the party he can not properly be brought to the place appointed for the return, that fact shall be set forth, and if verified by affidavit and established to the satisfaction of the court or judge, the hearing may be adjourned to such other time or place, or such order may be made as justice may require.

§ 1661. Upon the return of the writ the court or justice shall proceed without delay to examine the causes of imprisonment or restraint; but the examination may be adjourned from time to time as circumstances may reasonably require.

§ 1662. If the party is detained on any process under which any other person, who can be notified without unreasonable delay, provided such person or his attorney be within the Territory, has any interest in his detention, the party shall not be discharged until such party or his attorney shall have had an opportunity to be heard.

§ 1663. If the party is imprisoned on any criminal accusation reason

able notice shall be given to the attorney-general or his deputy, lawfully appointed, to appear and object if he thinks fit.

§ 1664. The party imprisoned or restrained may deny any of the facts set forth in the return and may allege other material facts, and the court shall proceed in a summary way to examine the causes of imprisonment or restraint and to hear evidence which may be offered by any person interested or authorized to appear, both in support of such imprisonment or restraint or against it, and thereupon to dispose of the party as law and justice may require.

§ 1665. If no legal cause for the imprisonment or restraint shall be shown, the party shall be immediately discharged therefrom.

§ 1666. If the party is detained for any cause or offense for which he is liable, he shall be admitted to bail if sufficient bail be offered, and, if not, he shall be remanded with an order of the court or justice expressing the sum in which he shall be held to bail and the court at which he shall be required to appear.

§ 1667. If the party is committed on mesne process in any civil action for want of bail, and the bail which is required shall appear to be excessive or unreasonable, the court or justice shall decide what bail is reasonable and shall order that upon giving such bail the party shall be discharged.

§ 1668. If the party is lawfully imprisoned or restrained and is not entitled to be enlarged on bail, he shall be remanded to the person or officer having lawful authority to detain him.

§ 1669. Until judgment be given, the court or justice may remand the party or accept bail for his appearance from day to day, or may place him under special care and custody, as circumstances may require.

§ 7670. Any person who shall neglect or refuse promptly to perform any duty imposed upon him by virtue of any writ of habeas corpus, conformably to the provisions of this act, shall be responsible in a civil action to any person aggrieved for damages occasioned thereby, and may be punished in any court of competent jurisdiction by fine. not exceeding five thousand dollars, or by imprisonment at hard labor not exceeding ten years, or both, in the discretion of the court.

§ 1671. The liabilities and penalties of the preceding section shall also be imposed upon any person who, having in his custody or under his power, any person entitled to a writ of habeas corpus, and who shall, with intent to elude the service of such writ, or to avoid the effect thereof, transfer such person to the custody or place him under the control or power of any other person, or conceal him or change his place of confinement.

§ 1672. Whenever it shall appear by satisfactory proof by affidavit. or otherwise to any court or justice authorized by law to issue writs of habeas corpus, that any one is illegally held in custody, confinement, or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of such court or justice, or will suffer some irreparable injury before compliance with a writ of habeas corpus can be enforced, such court or justice may cause a warrant to be issued, reciting the facts and directed to the chief sheriff or his deputy, or to any constable commanding such officer to take such person thus held in custody, confinement, or restraint and forthwith bring him before such court or justice and held there until a writ of habeas corpus can be duly issued and served, after which the party alleged to be illegally restrained shall be deemed to be before the court in obedience to such writ.

§ 1673. Any writ or process authorized by this chapter may be issued or served on Sunday.

§ 1674. No person who has been discharged upon a writ of habeas corpus shall be again imprisoned or restrained for the same cause, unless he shall be indicted therefor or convicted thereof, or committed for want of bail by some court of record having jurisdiction of the cause, or unless after a discharge for default of proof, or for some material default in the commitment in a criminal case, he shall be again arrested on sufficient proof, and committed by legal process for the same offense.

§ 1675. Nothing in this chapter shall be construed to restrain the power of any court of record to issue a writ of habeas corpus ad respondendum, when necessary, to bring before them any prisoner for trial in any criminal cause lawfully pending in such court, or a writ of habeas corpus ad testificandum, to bring in any prisoner to be examined as a witness in any suit or proceeding, civil or criminal, pending in such court, when they shall think the personal attendance and examination of the witness necessary for the attainment of justice. Such may be issued by any court of record in the exercise of a sound discretion and with due regard to conflicting interests and liabilities, anything in this chapter to the contrary notwithstanding. § 1676. Nothing in this chapter shall be construed to restrain the power of the supreme court or any justice thereof, at their discretion, to issue a writ of habeas corpus ad subjiciendum in case where it is not demandable of right, and thereupon to bail any person, for whatever cause he may be committed or restrained, or to discharge him, as law and justice may require.

§ 1677. The several circuit courts and the several circuit judges at chambers shall, within their respective circuits, have power to issue writs of habeas corpus as well in cases in which such writs are not demandable of right as in cases in which the same are issued as of right, within the provisions of this chapter.

[§ 1678.]

NOTE TO CHAPTER 105.

§§ 1645-1676 are S. L. 1870, ch. 32, C. L., p. 398. § 1677 is P. G. Act 75, amending § 1676.

Cases in Hawaiian Reports: Re Apuna, 6 Haw., 734; Re Man Min, 7 Haw., 460; Re Matsuji, 9 Haw., 402; Re Kalanianaole, 10 Haw., 29; Re Hoopai, 10 Haw., 610; Re Tatsu, 10 Haw., 701.

CHAPTER 106,

REMEDIES OF LANDLORDS.

SUMMARY PROCEEDINGS TO RECOVER LAND.

§ 1679. Whenever any lessee or tenant of any lands or tenements, or any person holding under such lessee or tenant, shall hold possession of such lands or tenements without right, after the determination of such tenancy, either by efflux of time or by reason of any forfeiture, under the conditions or covenants in any such lease, or, if a tenant by parole, by a notice to quit of at least ten days, the person entitled to such premises may be restored to the possession thereof in manner hereinafter provided.

§ 1680. The person entitled to the possession of the premises may apply to any district magistrate for a writ, in the form used for an original summons in common civil actions before such magistrate, in

which the defendant shall be summoned to answer the complaint of the plaintiff, for that the defendant is in the possession of the lands or tenements in question, describing them, which he holds unlawfully and against the right of the plaintiff, and no other declaration shall be recognized.

§ 1681. Such summons shall be served either

1. By delivering to the tenant to whom it shall be directed a true copy thereof, and at the same time showing him the original, or,

2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place with some person of mature age residing in the premises.

§ 1682. The summons shall be returnable within such time as shall appear reasonable to the magistrate, not less than three nor more than five days; and the suit shall be conducted like other civil actions before such magistrate.

§ 1683. If the defendant shall be defaulted, or if on the trial it shall be proved to the satisfaction of the magistrate that the plaintiff is entitled to the possession of the premises, he shall have judgment for the possession thereof and for his costs, and execution shall issue accordingly.

The writ of possession shall issue to the chief sheriff or to any sheriff or constable of the city or district where the premises are situated, commanding him to remove all persons from said premises, and to put the plaintiff or his agent into the full possession thereof.

§ 1684. The officer to whom such warrant for delivering possession shall be directed and delivered is hereby required to execute the same according to the tenor thereof.

§ 1685. Whenever a warrant shall be issued as aforesaid for the removal of any tenant, the contract for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled.

§ 1686. The issuing of such warrant of removal shall be stayed in the case of a proceeding for the nonpayment of rent, if the person owing such rent shall, before such warrant be actually issued, pay the rent due and all the costs and charges of the proceedings, or give such security for the payment thereof, within five days, as shall be satisfactory to the magistrate or to the plaintiff.

§ 1687. Any magistrate before whom a suit may be pending for the recovery of premises may, upon the request of either party, adjourn the hearing of the suit for the purpose of enabling such party to procure his witnesses, when it shall appear to be necessary; but such adjournment shall in no case exceed five days.

§ 1688. When the defendant is proceeded against for the nonpayment of rent and the magistrate decides that the plaintiff should have possession, the defendant shall not be allowed to keep possession and take his appeal, unless he first gives a bond to the plaintiff, with good and sufficient surety or sureties, to pay all rent that may accrue and become due after the appeal, provided it shall be finally determined that the plaintiff was entitled to the possession.

§ 1689. If any tenant, being in arrear for rent, shall desert the demised premises and leave the same unoccupied and uncultivated, any district magistrate may, at the request of the landlord and upon due proof that the premises have been so deserted by such tenant, leaving rent in arrear, go upon and view said premises; and upon being satisfied upon such view that the premises have been so deserted, he shall affix a notice in writing upon a conspicuous part of the prem

ises requiring the tenant to appear and pay the rent due at some time in the notice specified, not less than ten nor more than thirty days after the date thereof.

§ 1690. At the time specified in such notice the magistrate shall again view the premises, and if the tenant shall appear and pay the rent, or deny that any rent is due to the landlord, all proceedings. shall cease. If, upon the second view, the tenant or his agent shall not appear and pay the rent in arrear or deny that any rent is due, then said magistrate may put the landlord into possession of the premises, and any demise of the premises to such tenant shall from thenceforth become void.

§ 1691. An appeal from the proceedings of any magistrate under the last two preceding sections may be taken by the tenant to any circuit judge at chambers, or to the supreme court, at any time within one month after possession delivered, by serving notice in writing thereof upon such magistrate and by giving a bond in the sum of one hundred dollars, with good and sufficient sureties, to be approved by the magistrate, to pay to the landlord all costs of such appeal which may be adjudged against the tenant, and thereupon such magistrate shall send up a copy of the proceeding had before him within ten days after appeals.

RECOVERY OF RENTS.

§ 1692. Whenever any tenant or subtenant of any lands, tenements, or premises held by him, either by written or parole contract, for any term at a rent stipulated by such contract, shall make default in payment of such rent and allow the same to become in arrears, it shall be lawful for the landlord or party entitled to such rent to enter upon and into such lands, tenements, or premises in respect to which such rent shall be in arrears, without any legal process, and there to distrain and remove to a place of safe custody any goods and chattels of such defaulting tenant found on such premises to satisfy such arrears; and in case of nonpayment of such arrears and costs of such distress and removal within fifteen days after such distress and removal, it shall be lawful for such landlord or party making such distress at the expiration of fifteen days' public notice to cause such goods and chattels to be sold at public auction, and to apply the proceeds of such sale to the payment of such arrears as shall be due at the time of such sale, together with the costs of such distress, removal, custody, and sale, paying over to such tenant such surplus of such proceeds, if any, as shall be remaining after the payments aforesaid.

§ 1693. No goods or chattels of any tenant or occupier of any lands, tenements, or premises held by such tenant or occupier under any such contract as above mentioned shall be liable to be taken on execution on any pretence whatsoever, unless the party at whose suit such execution shall be sued out shall, before the removal of such goods under such execution, pay to such landlord or owner of such premises all such arrears of rent as shall be due to him thereanent; provided such arrears of rent do not exceed one year, if such tenancy be by the year; and in case such tenancy shall be by the week or month, such landlord or owner shall not have any lien or claim on such goods for any arrears of rent accruing during four of such weekly or monthly terms.